of the state courts discloses that a Federal question has been raised and decided, and another question, not Federal, broad enough to sustain the judgment, has also been raised and decided, this court will nct review the judgment; that this is so even when it does not appear on which of the two grounds the judgment was based, if the independent ground on which it might have been based

Gibson by preventing ingress and egress to and from the landing on and in front of her farm to the main or navigable channel of the river,—Held, damnum absque injuria. The court by the Chief Justice said: "The Fifth Amendment to the Constitution of the United States provides that private property shall not be taken for public use without just compensation." Here, however, the da nage of which Mrs. Gibson complained was a good and valid one; and also where was not the result of the taking of any part the record shows the existence of non-Fedof her property, whether upland or sub-eral grounds of decision though silent as to merged or a direct invasion thereof, but the what particular ground was pressed and incidental consequence of the lawful and proceeded on. In other words, the rule is proper exercise of a governmental power." that the record must so present a Federal Judgment is affirmed. question that even if the reasons for decision are not given this court can properly conclude that it was disposed of by the state courts. If the conflict of a state law with the Constitution and the decision by the state court in favor of its validity are relied on, such decision must appear on the face of the record before the judgment can be re-examined in this court.

[99] *Mr. Chief Justice Fuller, with whom Mr. Justice Gray concurred, dissenting on the question of jurisdiction:


I am of opinion that this writ of error should be dismissed. The contention of plaintiff in error is that the validity of the act of the General Assembly of Virginia May 24, 1870, was drawn in question in the state courts on the ground of repugnancy to the Constitution of the United States, and that the decision of the court of appeals was in favor of its validity.

This case had gone to judgment, and a motion to set aside the judgment had been made and denied, before it was suggested that the act was inconsistent with the Federal Constitution. And that question was then attempted to be raised by a second motion to vacate. But the disposal of motions of this class is within the discretion of the trial court, and only revisable by the appellate tribunal, if at all, when there is a palpable abuse of discretion.

In Klinger v. Missouri, 13 Wall. 257 [20: 635], a juror had declined to take the test oath prescribed by the sixth section of the second article of the Constitution of Missouri of 1865, and was discharged from the panel. It was insisted here that he was thus excluded for no other reason than that he refused to take the oath, and, if this had[101] been so, the question of the repugnancy of the section to the Constitution of the United States would have arisen. But as this court was of opinion that, inasmuch as the grounds the juror assigned for his refusal manifested a settled hostility to the government, he might "well have been deemed by the court, irrespective of his refusal to take the oath, an unfit person to act as a juryman, and a participant in the administration of the laws:" it was held that "it certainly would have been in the discretion of the court, if not its duty, to discharge him." And Mr. Justice Bradley, delivering the opinion of the court, said: "In this case it appears that the court below had a good and valid reason for discharging the juror, independent of his refusal to take the test oath; and it does not appear but that he was discharged for that ground. It cannot, therefore, with certain

Whether the trial court, in this instance, overruled the second motion because a second motion of that sort, without special cause shown, could not be entertained, or be[100]cause *of unreasonable delay, it is impossible

sion of a Federal question when it obviously may have considered that the point was presented too late, seems to me wholly inadmissible. And although in his petition to the court of appeals, plaintiff in error recited the action he had taken, and urged that the trial court had erred in sustaining the demurrer to his declaration, and in refusing to set aside the judgment so that the constitutional question suggested might be passed on, that court, in the exercise of appellate jurisdiction only, may well have concluded that the discretion of the court below could not be interfered with.

to say, and to impute to that court the deci-ty, be said that the supreme court of Missouri did decide in favor of the validity of the said clause of the state Constitution, which requires a juror to take the test oath." There was nothing in the record to show on what ground the trial court excluded the juror, or that the point urged in this court was taken in the supreme court of the state, and yet because the trial court might have discharged the juror as matter of discretion, or because of unfitness in the particular suggested, this court decided that its jurisdiction could not be maintained, and the writ of error was dismissed. And see Johnson v. Risk, 137 U. S. 300 [34: 683]; Dibble v. Bellingham Bay Land Company, 163 U. S. 63 [41: 72].

The validity of a statute is drawn in question when the power to enact it is denied, and a definite issue in that regard must be distinctly deducible from the record in order for this court to hold that the state courts have adjudicated as to the validity of the

enactment under the Constitution.

It does not follow from the bare fact that this second motion presented in terms a single point that that point was disposed of in denying the motion, when other grounds for such denial plainly existed.

It is thoroughly settled that if the record

We have held that the question whether a party has by laches and acquiescence waived the right to insist that a state statute impaired the obligation of a contract is not a

And, certainly, in view of the careful language of § 709 of the Revised Statutes, we ought not to take jurisdiction to revise a judgment of a state court, where a party seeks to import a Federal question into the record, after judgment, by an application so palpably open to decision on non-Federal grounds.

Federal question. Pierce v. Somerset Rail-a judgment of said court in favor of the
way Company, 171 U. S. 641 [ante, 316]. Commonwealth of Virginia, and reversing
the judgment of the Circuit Court of the
City of Norfolk in said State, and dismissing
the petition of A. A. McCullough to estab-
lish the genuineness of certain coupons ten-
dered in payment of taxes. Reversed, and
case remanded for further proceedings.
See same case below, 90 Va. 597.

A. A. MCCULLOUGH, Piff. in Err.,


Statement by Mr. Justice Brewer: *On March 30, 1871, the general assembly[103] of the state of Virginia passed an act for the refunding of the public debt. (Va. Acts Assembly, 1870-71, p. 378. See also act of March 28, 1879; Va. Acts Assembly, 1878-79, p. 264.) This act, which authorized the issue of new coupon bonds for two thirds of the old bonds, leaving the other third (See S. C. Reporter's ed. 102-133.) as the basis of an equitable claim upon the state of West Virginia, contained this proviVirginia law that coupons of bonds shall be sion: "The coupons shall be payable semireceived for taxes, etc., is valid-decision annually, and be receivable at and after maof state court, when not binding on Fed- turity for all taxes, debts, dues, and deeral court-special taxes-Federal ques-mands due the state, which shall be so extion-limits of review of state judgments pressed on their face." Under this act a -costs-vested right not taken away by large amount of the outstanding debt of the repeal of statute. state was refunded. This provision gave value to the bonds as affording an easy method of securing payment of the interest. This refunding scheme, however, did not prove satisfactory to the people of the state, and since then there has been repeated legright granted by this provision. Among islation tending to destroy or impair the other statutes may be noticed the following: The act of March 7, 1872 (Acts of Assembly, 1871-72, p. 141), providing that it should not be "lawful for the officers charged with the collection of taxes or other demands of the state, due now or that shall hereafter become due, to receive in payment thereof anything else than gold or silver coin, United States Treasury notes, or notes of the national banks of the United States." That of March 25, 1873 (Acts of Assembly, 187273, p. 207), imposing a tax of fifty cents on the hundred dollars market value of bonds, and directing that such amount be deducted from coupons tendered in payment of taxes or dues.

I am authorized to state that Mr. Justice Gray concurs in this dissent.




The coupon provision of Va. act March 30, 1871, providing that the coupons of refunding bonds shall be receivable for all taxes, debts, dues, and demands due the state, which

shall be so expressed on their face, is valid.

2. The decision of a state court against the

validity of a state statute which constitutes

a contract alleged to be impaired by subsequent statutes is not binding on the Federal



A state statute authorizing state coupons to be received for all taxes is not wholly void because certain special taxes and dues are, by the existing state Constitution, required to be paid in cash.

The decision of a state court denying the validity of a state statute which creates a contract, and giving effect to subsequent statutes which impair the obligation of the contract, presents a Federal question which this court may review, although the state court in its opinion considers only the statute which it holds void, and does not discuss the later


At the time the act of 1871 was passed and the new bonds and coupons were issued, the court of appeals of the state had jurisdiction to grant a mandamus in any action where the writ would lie according to the principles of the common law, and *in Antoni v. Wright,[104] 22 Gratt. 883, it was held by that court that mandamus was the proper remedy to compel ment of taxes. On January 14, 1882, the asthe collector to accept coupons offered in pay

6. Judgment for costs cannot be rendered against the plaintiff in an action which has abated.

7. A rightful judgment against the state gives

ute which authorized the state to be sued.

[No. 3.]

Submitted November 2, 1896.

Ordered for oral argument December 14, 1896. Argued February 21, 23, 1898. Decided December 5, 1898.

a vested right which cannot be taken away
pending writ of error, by a repeal of the stat-sembly passed an act (Acts 1881-82, p. 10),
which, in effect, provided that a taxpayer
seeking to use coupons in payment of his
taxes should pay the taxes in money at the
time of tendering the coupons, and thereaft-
er bring a suit to establish the genuineness
of the coupons, which, if decided in his fa-
vor, enabled him to obtain from the treasurer
a return of the money paid. The various
features of this act are specifically pointed
in Antoni v. Greenhow, 107 S.
468]. At the same session, and on January

In reviewing the judgment of the courts of a state, this court is not limited to a mere consideration of the language used in the opinion, but may examine and determine what is the real substance and effect of the decl


ERROR to the Court of peals of the State of Virginia to review

26, 1882 (Acts 1881-82, p. 37), the assembly | filed his petition in the circuit court of the passed a further act declaring that the tax city of Norfolk to establish the genuineness collectors should receive in payment of taxes of certain coupons tendered in payment of and other dues "gold, silver, United States taxes. The proceeding was had under the Treasury notes, national bank currency, and act of 1882, and no question is made of a nothing else," with a provision for suit by full compliance with the terms of that statone claiming that such exaction was illegal. ute. Judgment was rendered in his favor by The act contained this proviso: "There shall the circuit court of the city of Norfolk, be no other remedy in any case of the collec- which judgment was, on March 23, 1894, tion of revenue, or the attempt to collect rev-reversed by the supreme court of appeals of enue illegally, or the attempt to collect reve- the state, 90 Va. 597, and a judgment ennue in funds only receivable by said officers, tered in favor of the commonwealth, dismissunder this law, the same being other and dif-ing the petition of the plaintiff and awardferent funds than the taxpayer may tender or ing to the commonwealth costs. Or[106] claim the right to pay, than such as are herein June 13, 1894, a writ of error was allowed, provided; and no writ for the prevention of and the case brought to this court. any revenue claim, or to hinder or delay the collection of the same, shall in anywise issue, either injunction, supersedeas, mandamus, prohibition, or any other writ or process whatever; but in all cases if for any reason any person shall claim that the revenue so collected of him was wrongfully or illegally collected, the remedy for such person shall be as above provided, and in no other manner." At the same session, on February 14, 1882, a new funding bill was passed containing a proposition to the bondholders (Acts 188182, p. 88); and again at the same session, on April 7, 1882, an act was passed amending the Code of Virginia in respect to mandamus, which provided "that no writ of mandamus, prohibition, or any other summary process whatever, shall issue in any [105]case of the collection, or attempt to collect revenue, or to compel the collecting officers to receive anything in payment of taxes other than as provided in chapter forty-one, acts of assembly, approved January twenty-six, eighteen hundred and eighty-two, or in any case arising out of the collection of revenue in which the applicant for the writ or process has any other remedy adequate for the protection and enforcement of his individual right, claim, and demand, if just." (Acts 1881-82, p. 342.)

On March 15, 1884, the general assembly passed a general act in reference to the assessment of taxes on persons, property, and incomes (Acts 1883-84, p. 561), the one hundred and thirteenth section (p. 603) of which required that all school taxes should be paid "only in lawful money of the United


On January 26, 1886 (Acts 1885-86, P. 37), an act was passed providing that in a suit in respect to coupons tendered in payment of taxes, no expert testimony should be receivable, and that the bonds from which the coupons were cut should be produced, if demanded, as a condition precedent to the right of recovery. Section 399 of "the Code of Virginia," which was a revision and re-enactment of the general statutes of the state, adopted May 16, 1887, reads: "It shall not be lawful for any officer charged with the collection of taxes, debts, or other demands of the state to receive in payment thereof anything else than gold or silver coin, United States Treasury notes, or national bank notes."

On May 29, 1892, the plaintiff in error

Mr. Richard L. Maury for plaintiff in error on submission of case.

Mr. R. Taylor Scott, Attorney General of Virginia, for defendant in error on submission of case.

Messrs. Richard L. Maury, William A. Maury, and M. F. Maury for plaintiff in error on oral_argument.

Messrs. A. J. Montague, Henry R. Pollard, and R. Taylor Scott, Attorney General of Virginia, for defendant in error on oral argument.

*Mr. Justice Brewer delivered the opin-[106] ion of the court:

Perhaps no litigation has been more tricate and troublesome questions, than that severely contested, or has presented more inwhich has arisen under the coupon legislation of Virginia. That legislation the state and Federal courts, not a few of has been prolific of many cases, both in which finally came to this court.

Hartman v. Greenhow, 102 U. S. 672 [26: 271]; 468]; Virginia Coupon Cases, 114 U. S. 269 Antoni v. Greenhow, 107 U. S. 769 [27: [29: 185]; Poindexter v. Greenhow, 114 U. S: 270 [29: 185]: Carter v. Greenhow, 114 U. S. 322 [29: 204]; Moore v. Greenhow, 114 U. S. 325 [29: 205]; Barry v. Ed114 U. S. 340 [29: 240]; Marye v. Parsons, munds, 116 U. S. 550 [29: 729]; Chaffin V. Taylor, 116 U. S. 571 [29: 728[; Royall v. Virginia, 116 U. S. 572 [29: 735]; Royall v. Virginia, 121 U. S. 102 [30: 883]; Sands V. Edmunds, 116 U. S. 585 [29: 739]; Stewart v. Virginia, 117 U. S. 612 [29: 1006]; Re Ayers, 123 U. S. 443 [31: 216];

McGahey v. Virginia, 135 U. S. 662 [34:


For the first time in the history of this litigation has any appellate court, either state or Federal, distinctly ruled that the coupon provision of the act of 1871 was void. After the passage of the act of March 7, paid in cash, the case of Antoni v. Wright 1872, which in terms required all taxes to be came before the court of appeals of Virginia (22 Gratt. 833), and on December 13, 1872, was decided. Elaborate opinions were filed, and the court held the act of 1871 valid and the act of 1872 void, as violating the contract embraced in the coupon provision of the act of 1871. This decision was reaffirmed in Wise Bros. v. Rogers, 24 Gratt.[107] 169, decided December 17, 1873; Clarke v.

Tyler, 30 Gratt. 135, decided April 4, 1878, | payment of taxes in cash only was unconand again in Williamson v. Massey, 33 Gratt. stitutional, the general assembly of Virginia 237, decided April 29, 1880. In Greenhow has from time to time passed acts tending v. Vashon, 81 Va. 336, decided January 14, to embarrass the coupon holder in the exer1886, the act requiring school taxes to be cise of the right granted by the funding act. paid in cash was sustained, and such taxes Some of these acts appear in the statement excepted from the coupon contract on the preceding this opinion, but for a more full ground of a specific command in the state review of the legislation and the course of Constitution in force at the time of the pas- decision_reference may be had to the opinion sage of the funding act. There was no di- of Mr. Justice Bradley in the several cases rect decision that the coupon provision was reported under the title of McGahey v. Virentirely void, although the intimation was ginia, supra. clear that such was the opinion of the judges then composing the court.

In this court the decisions have been uniform and positive in favor of the validity of the act of 1871. There has been no dissonance in the declarations, from the first case, Hartman v. Greenhow, 102 U. S. 672, 679 [26: 271, 275], decided at the October term, 1880, in which, referring to this act, the court said, by Mr. Justice Field: "A contract was thus consummated between the state and the holders of the new bonds, and the holders of the coupons, from the obligations of which she could not, without their consent, release herself by any subsequent legislation. She thus bound herself, not only to pay the bonds when they became due, but to receive the interest coupons from the bearer at and after their maturity, to their full amount, for any taxes or dues by him to the state. This receivability of the coupons for such taxes and dues was written on their face, and accompanied them into whatever hands they passed. It constituted their chief value, and was the main consideration consideration. offered to the holders of the old bonds to surrender them and accept new bonds for two thirds of their amount,"-to McGahey v. Virginia, 135 U. S. 662, 668 [34: 304, 306], decided at the October term, 1889, in which Mr. Justice Bradley, delivering the unanimous opinion of the court, observed: "We have no hesitation in saying that the act of 1871 was a valid act, and that it did and does constitute a contract betweeen the state and the holders of the bonds issued under it, and that the holders of the coupons of said bonds, whether still attached thereto or separated therefrom, are entitled, by a solemn engagement of the state, to use them in payment of state taxes and public [108]dues. This was determined in Hartman v. Greenhow, 102 U. S. 672 [26: 271], decided in January, 1881; in Antoni v. Greenhow, 107 U. S. 769 [27: 468], decided in March, 1883; in the Virginia Coupon Cases, 114 U. Secondly. It is insisted that whatever S. 269 [29: 185], decided in April, 1885, may be our own opinions upon the case, we and in all the cases on the subject that have are to take the construction placed by the come before this court for adjudication. court of appeals of Virginia upon the act This question, therefore, may be considered as the law of that state. While it is unas foreclosed and no longer open for consid-doubtedly the general rule of this court to eration. It may be laid down as undoubted accept the construction placed by the courts law that the lawful owner of any such cou- yet one exception to this rule has always of a state upon its statutes and Constitution, pons has the right to tender the same after been recognized, and that in reference to the maturity in absolute payment of all taxes, matter of contracts alleged to have been imdebts, dues, and demands due from him to paired. This was distinctly affirmed in Jefferson Branch Bank v. Skelly, 1 Black, 436, 443 [17: 173, 177], in which the court, speaking by Mr. Justice Wayne, gave these reasons for the exception: "It has never

We pass, therefore, to a consideration of the specific questions presented in this record., First. It is insisted that the decision of the court of appeals was right, and that the coupon provision was void. It were a waste of time to repeat all the arguments which have been heretofore presented, and

we content ourselves with reiterating that which was said by Mr. Justice Bradley speaking for the entire court, in McGahey V. Virginia, 135 U. S. 662, 668 [34: 304, 306]: "This question, therefore, may be considered as foreclosed and no longer open for consideration. It may be laid down as undoubted law that the lawful owner of any such coupons has the right to tender the same after maturity in absolute payment of all taxes, debts, dues, and demands due from him to the state."

the state."

Since the decision of the court of appeals of Virginia, in Antoni v. Wright, 22 Gratt. 833, that the act of 1872, providing for the

We are advised by the opinion of the court of appeals of Virginia, in 22 Gratt. 833, that the debt-two thirds of which was proposed to be refunded and most of which was, in fact, refunded-amounted to $40,000,000 of principal. These refunding bonds, amounting to many millions of dollars, have passed into the markets of the world, and have so passed accredited, not merely by the action of the general assembly of the state of Virginia, but by the repeated decisions of her highest court, as well as of this court, for substantially a quarter of a century, to the effect that such coupon provision was constitutional and binding. Now, at the end of twenty-seven years from the passage of the act, we are asked to hold that this guaranty of value, SO fortified as it has been, was never of any validity, that the decisions to that effect are of no force and that all the transactions which have been had based thereon rested upon nothing. Such a result is so startling[109] that it at least compels more than ordinary

It may be well to here quote the language with which Mr. Justice Bradley concludes his general review of the prior litigation, and which in its last paragraph shows that this very matter was considered and determined, pages 684, 685 [34: 312.]:

been denied, nor is it now, that the Supreme | it could be enforced in respect to general Court of the United States has an appellate taxes. power to revise the judgment of the supreme court of a state, whenever such a court shall adjudge that not to be a contract which has been alleged, in the forms of legal proceedings, by a litigant, to be one, within the meaning of that clause of the Constitution of the United States which inhibits the states from passing any law impairing the obligation of contracts. Of what use would the appellate power be to the litigant who feels himself aggrieved by some particular state legislation, if this court could not decide, independently of all adjudication by the supreme court of a state, whether or not [110]the phraseology of the instrument in controversy was expressive of a contract and within the protection of the Constitution of the United States, and that its "Second, that the various acts of the asobligation should be enforced, not-sembly of Virginia passed for the purpose of withstanding a contrary conclusion by the restraining the use of said coupons for the supreme court of a state? It never was in- payment of taxes and other dues to the state, tended, and cannot be sustained by any and imposing impediments and obstructions course of reasoning, that this court should, to that use, and to the proceedings instituted or could with fidelity to the Constitution of for establishing their genuineness, do in the United States, follow the construction of many respects materially impair the obligathe supreme court of a state in such a mat- tion of that contract, and cannot be held to ter, when it entertained a different opinion." be valid or binding in so far as they have The doctrine thus announced has been uni- that effect; formly followed. Bridge Proprietors v. Hoboken Land & Improv. Co. 1 Wall. 116, 145 [17: 571, 576]; Wright v. Nagle, 101 Ú. S. 791,793 [25:921,922]; McGahey v. Virginia, 135 U. S. 665, 667 [34: 305, 306]; in which, in reference to this very contract, it was said: "In ordinary cases the decision of the highest court of a state with regard to the validity of one of its statutes would be binding upon this court; but where the question raised is, whether a contract has or has not been made, the obligation of which is alleged to have been impaired by legislative action, it is the prerogative of this court under the Constitution of the United States and the acts of Congress relating to writs of error to the judgments of state courts, to inquire and judge for itself with regard to the making of such contract, whatever may be the views or decisions of the state courts in relation thereto." See also Douglas v. Kentucky, 168 U. S. 488, 501 [42: 553, 557], and cases cited therein.

"Without committing ourselves to all that has been said, or even all that may have been adjudged, in the preceding cases that have come before the court on the subject, we think it clear that the following propositions have been established:

"First, that the provisions of the act of 1871 constitute a contract between the state of Virginia and the lawful holders of the bonds and coupons issued under and in pursuance of said statute;

"Third, that no proceedings can be instituted by any holder of said bonds or coupons against the commonwealth of Virginia, either directly by suit against the commonwealth by name, or indirectly against her executive officers to control them in the exercise of their official functions as agents of the state;

"Fourth, that any lawful holder of the tax-receivable coupons of the state issued under the act of 1871 or the subsequent act of 1879, who tenders such coupons in payment of taxes, debts, dues, and demands due from him to the state, and continues to hold himself ready to tender the same in payment thereof, is entitled to be free from molestation in person or goods on account of such taxes, debts, dues, or demands, and may vindicate such right in all lawful modes of redressby suit to recover his property, by suit against the officer to recover damages for taking it, by injunction to *prevent such tak-[112] ing where it would be attended with irremediable injury, or by a defense to a suit brought against him for his taxes or the other claims standing against him. No conclusion short of this can be legitimately drawn from the series of decisions which we have above reviewed, without wholly overruling that rendered in the Coupon Cases and disregarding many of the rulings in other do. To the extent here announced we feel cases, which we should be very reluctant to bound to yield to the authority of the prior decisions of this court, whatever may have been the former views of any member of the court.

Thirdly. It is urged that our last decision, that in McGahey v. Virginia, supra, logically leads to the conclusion that the whole coupon contract was void, and that the court of appeals of Virginia rightly interpreted the scope of that decision when it so held. The argument of that court is that because the Constitution of Virginia compels the payment of certain taxes in cash, and that therefore the coupon contract cannot be enforced as against those taxes, the whole contract must fail, the partial failure being a vice which enters into and destroys the entire contract. But the court overlooks that which was in fact decided in the eight cases reported under the title of McGahey v. Virginia, for while in two of those cases it was held that the coupon contract could not [111]be enforced against certain specific taxes and dues, it was in others as distinctly held that 172 U. S. U. S.. Book 43.

"There may be exceptional cases of taxes, debts, dues, and demands due to the state which cannot be brought within the operation of the rights secured to the holders of the bonds and coupons issued under the acts of 1871 and 1879. When such cases occur



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